STATE OF NEW JERSEY v. GARY ZAMUDIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1774-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY ZAMUDIO,

Defendant-Appellant.

__________________________

March 8, 2012

Argued January 10, 2012 - Decided

Before Judges Payne, Simonelli and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-05-0724.

John Vincent Saykanic argued the cause for appellant.

Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Gary Zamudio was convicted of first-degree robbery, N.J.S.A. 2C:15-1a(2) (count one); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3a and b (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count five). At sentencing, the trial judge merged counts two, three and four into count one, and imposed a fifteen-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent five-year term of imprisonment with three years of parole ineligibility on count five, imposed the appropriate assessments and penalty, and ordered restitution in the amount of $752.11. We affirm.

The victim, Felix Rosa, testified at trial that at approximately 6:45 a.m. on January 24, 2009, he was walking to a coffee shop in Passaic when he noticed a blue Toyota stop near him. Two men, each approximately 5'6" or 5'7" and both wearing black leather jackets, exited the Toyota. There may have been a third man, who remained in the car. Although the two men who exited the car wore black wool ski masks covering their entire heads, Rosa saw that they had skin complexions similar to his Hispanic complexion. One man, who had a teardrop tattoo near his left eye, pointed a gun at Rosa's head and then at his kneecap, and ordered Rosa to give him all of his money or else he would shoot Rosa in the leg. The other man rifled through Rosa's pockets and took his cell phone, Christmas Club book, two un-cashed paychecks, and a wallet containing five credit cards and a passport identification card. After robbing Rosa, the men got back into the Toyota and left the scene. Rosa noticed the license plate number and that the car had a football insignia on the back of it.

The robbery occurred near a police station. Rosa went inside the station, reported the robbery, gave the police the license plate number, and said the getaway car was a blue Toyota. According to the written report of the police officer to whom Rosa reported the robbery, Rosa allegedly said that the skin around the assailants' eyes was black.

Detective John Rodriguez (Det. Rodriguez) of the City of Passaic Police Department testified that the plate number Rosa gave them belonged to a Honda Civic; however, because Rosa insisted that the getaway car was a blue Toyota, they tried variations on the plate number, and eventually found that a similar plate number belonged to a blue Toyota registered to Jose Apuy. Within hours of the robbery, the police located the Toyota, which had a football insignia on it. Rosa identified the Toyota as the getaway car. Det. Rodriguez looked inside the car and saw two ski masks on the back seat. After obtaining Jose Apuy's consent to search the car, the detective recovered the ski masks and a wallet containing a credit card bearing Rosa's name, and Rosa's passport identification card. The masks were reversible -- one side was plain black material and the other side had a pattern; one mask had an American flag pattern, and the other had a flame pattern. Contrary to Rosa's testimony, Det. Rodriguez said that the masks did not cover the entire head, and he did not know if they were wool. The detective did not have Rosa identify the wallet or masks, and the wallet was not dusted for fingerprints. However, there was no dispute that DNA testing confirmed the presence of defendant's saliva on one of the masks.

The police arrested Jose Apuy's son, Dario Apuy (Apuy), on the day of the robbery, and two days later, on January 26, 2009, they arrested defendant, who is Apuy's first cousin.1 At the time of his arrest, defendant was wearing a black leather jacket that matched Rosa's description of the assailants' jackets. Defendant had no teardrop tattoo near his left eye; however, Wilfredo Santiago, who was later arrested for the robbery, had a teardrop tattoo in that location.

Defendant received his Miranda2 rights at police headquarters, and invoked his right to counsel. As Det. Rodriguez was walking defendant into the cell area, defendant saw Apuy and said, "Keep your mouth shut, don't say sh** to the detectives." Defendant moved to suppress this statement. The trial judge denied the motion, holding that defendant did not make the statement in response to any form of interrogation, the police did not prompt or intimidate defendant to make the statement, and the statement was a "blurt out."

After the close of the State's case, defendant moved for judgment of acquittal on all counts based on the discrepancy in Rosa's and Det. Rodriguez's descriptions of the ski masks,3 and because Rosa did not identify the masks as the ones the assailants wore. Citing State v. Reyes, 50 N.J. 454 (1967), the judge denied the motion, concluding it was for the jurors to evaluate the discrepancy, and there was other circumstantial evidence on which the jury could reasonably find defendant guilty beyond a reasonable doubt on all counts, such as the wallet found in the getaway car, and defendant's "blurt out," which the jury could have concluded was an expression of consciousness of guilt.

The jury rendered its verdict on June 29, 2010. On August 30, 2010, defendant filed a motion for judgment of acquittal notwithstanding the verdict, or alternatively, a new trial. The judge denied the motion because it was untimely filed. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 AT THE END OF THE STATE'S CASE SINCE THERE IS INSUFFICIENT EVIDENCE LINKING THE DEFENDANT ZAMUDIO TO ANY OF THE COUNTS; THE CONVICTIONS ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.

POINT II

THE COURT SHOULD HAVE GRANTED THE MOTION FOR JUDGMENTS OF ACQUITTAL SINCE THERE IS INSUF[F]ICIENT EVIDENCE THAT THE ALLEGED PRINCIPAL ACCOMPLICE WAS WILFREDO SANTIAGO.

POINT III

THE DEFENDANT'S CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE AND REASONABLE DOUBT EXISTS AS TO DEFENDANT'S GUILT MANDATING A VACATION OF CONVICTIONS AND, IF NOT ENTRY OF JUDGMENTS OF ACQUITTAL, THEN, AT THE VERY LEAST, A NEW TRIAL.

POINT IV

THE DEFENDANT'S CONVICTIONS MUST BE VACATED DUE TO THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY AS TO IDENTIFICATION IN VIOLATION OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST. (1947), ART I, PARS. 1, 10) (PARTIALLY RAISED BELOW).

POINT V

THE COURT BELOW COMMITTED PLAIN ERROR IN THE ACCOMPLICE LIABILITY INSTRUCTIONS BY REPEATEDLY INSTRUCTING THE JURY NOT TO "CONSIDER" THE LESSER-INCLUDED OFFENSES UNLESS THE JURY ACQUITTED DEFENDANT OF THE ROBBERY; THIS SEQUENTIAL-DELIBERATION INSTRUCTION IS FORBIDDEN BY STATE V. ZOLA AND STATE V. COYLE, MANDATING A REVERSAL (PARTIALLY RAISED BELOW).

POINT VI

DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION; EITHER A PRESUMPTION OF PREJUDICE IS JUSTIFIED OR, AT THE VERY LEAST, A NEW TRIAL MUST BE ORDERED SINCE THERE IS A REASONABLE PROBABILITY THAT BUT[] FOR COUNSEL'S ERRORS THE RESULT OF THE PROCEEDING WOULD HAVE BEEN DIFFERENT.

POINT VII

THE DEFENDANT'S SENTENCE IS EXCESSIVE AND NOT IN CONFORMANCE WITH CASE LAW AND THE SENTENCING GUIDELINES; DEFENDANT'S SENTENCE MUST BE REDUCED.

The contentions raised in Points IV and V lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make these brief comments. There was no reason for an identification charge because no eyewitness identified defendant as one of the assailants. See State v. Benthall, 182 N.J. 373, 386 (2005) (noting that "an eyewitness identification did not feature in the State's case" and a failure to give an identification instruction did not necessarily require reversal). Also, the judge had properly instructed the jury that it was the State's burden to prove beyond a reasonable doubt all elements of the crimes charged and that defendant was the individual who committed them.

We also decline to consider defendant's ineffective assistance of counsel contention in Point VI because it involves allegations and evidence lying outside the trial record that must be resolved in a petition for post-conviction relief. State v. Castagna, 187 N.J. 293, 313 (2006).

I.

Defendant contends in Point I that the trial judge erred in denying his Rule 3:18-1 motion for judgment of acquittal on all counts because the State failed to present sufficient evidence linking him to the robbery. We disagree.

We use the same standard as the trial judge in reviewing a motion for judgment of acquittal pursuant to Rule 3:18-1. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996). We must determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Reyes, supra, 50 N.J. at 459.]

Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J.72 (1975). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

Rosa testified that he was threatened and robbed at gunpoint; DNA evidence linked defendant to one of the ski masks found in the getaway car shortly after the robbery; the police found Rosa's wallet containing his credit card and passport identification card in the getaway car; defendant wore a leather jacket that matched Rosa's description of the assailants' jackets; and defendant made a potentially inculpatory statement at police headquarters. We are satisfied that this evidence, viewed in its entirety and giving the State all favorable inferences therefrom, was sufficient to allow a reasonable jury to find defendant guilty on all counts beyond a reasonable doubt.

II.

Defendant contends in Point II that the judge should have granted his post-verdict motion pursuant to Rule 3:18-2 because the State failed to present evidence that Santiago had actually committed the crimes charged. Defendant contends in Point III that he is entitled to judgment n.o.v., or alternatively, a new trial, because his convictions were against the weight of the evidence. We reject both contentions.

The standard for deciding a Rule 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996).

An against-the-weight-of-the-evidence argument is not cognizable on appeal unless the defendant made a motion below for a new trial on that ground within ten days after the jury verdict. R. 2:10-1; R. 3:20-2. The time period may not be enlarged by the trial court or by the parties' consent. R. 1:3-4(c). However, notwithstanding a motion's untimeliness, we may consider it on the merits in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993). We choose to do so here.

"In considering whether a jury verdict was against the weight of the evidence, our task is to decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" Id. at 512 (quoting R. 2:10-1). Our "review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). We "should not overturn the findings of a jury merely because [we] might have found otherwise if faced with the same evidence." State v. Afanador, 134 N.J. 162, 178 (1993).

Here, the State alleged that acting as an accomplice in the commission of a theft using a firearm, defendant threatened Rosa with or purposely put him in fear of immediate bodily injury. N.J.S.A. 2C:15-1a(2). "A person is legally accountable for the conduct of another person when . . . [h]e is an accomplice of such other person in the commission of the offense[.]" N.J.S.A. 2C:2-6b(3). To be considered an accomplice, an individual must have the "purpose of promoting or facilitating the commission of the offense" and must solicit, aid, agree to aid, or attempt to aid another person in planning or committing the crime. N.J.S.A. 2C:2-6c(1). The principal does not need to be prosecuted or convicted of the crime in order for an accomplice to be convicted; however, the State must prove beyond a reasonable doubt that the crime actually occurred. See State v. Lassiter, 348 N.J. Super. 152, 162-63 (App. Div. 2002).

A person is guilty of first-degree robbery "if, in the course of committing a theft, he . . . [t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1a(2).

A person is guilty of fourth-degree aggravated assault if he "[k]nowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in [N.J.S.A.] 2C:39-1f, at or in the direction of another, whether or not the actor believes it to be loaded[.]" N.J.S.A. 2C:12-1b(4).

A person is guilty of third-degree terroristic threats

if he threatens to commit any crime of violence with the purpose to terrorize another or . . . in reckless disregard of the risk of causing such terror or inconvenience . . . . [or] if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

[N.J.S.A. 2C:12-3a, b.]

A person is guilty of second-degree possession of a weapon for an unlawful purpose if he "has in his possession any firearm with a purpose to use it unlawfully against the person or property of another[.]" N.J.S.A. 2C:39-4a(1). A person is guilty of second-degree unlawful possession of a weapon if he "knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in [N.J.S.A.] 2C:58-4[.]" N.J.S.A. 2C:39-5b.

It is irrelevant whether the State proved that Santiago, or someone else, committed the crimes charged. In order to prove accomplice liability, the State was only required to prove beyond a reasonable doubt that the crimes had actually occurred, not who committed them. The State met its burden here. Rosa testified that he was threatened with bodily harm when robbed by two men at gunpoint.

In addition, there was no miscarriage of justice under the law. The evidence established beyond a reasonable doubt that defendant acted as an accomplice in the commission of the crimes charged. Accordingly, we discern no reason to overturn defendant's convictions.

III.

Defendant challenges his sentence in Point VII. He argues that the trial judge should have found and applied certain mitigating factors. We disagree.

At sentencing, the judge found and applied aggravating factors three, "[t]he risk that the defendant will commit another offense[,]" N.J.S.A. 2C:44-1a(3); six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]" N.J.S.A. 2C:44-1a(6); and nine, "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1a(9).

The judge also found and applied mitigating factors seven, "[t]he defendant has no history of prior delinquency[,]" N.J.S.A. 2C:44-1b(7); and eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[,]" N.J.S.A. 2C:44-1b(11). Defendant contends that because of his drug addiction, the judge should also have found and applied mitigating factors three, "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3); and four, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" N.J.S.A. 2C:44-1b(4). The judge should have also found and applied mitigating factors six, "[t]he defendant . . . will participate in a program of community service[,]" N.J.S.A. 2C:44-1b(6); eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur[,]" N.J.S.A. 2C:44-1b(8); nine, "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense[,]" N.J.S.A. 2C:44-1b(9); and ten, "[t]he defendant is particularly likely to respond affirmatively to probationary treatment[,]" N.J.S.A. 2C:44-1b(10).

Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

We are satisfied that the record amply supports the aggravating factors the judge found and applied. Although defendant had no juvenile record, as an adult he had nine arrests, two municipal convictions, and two indictable convictions for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), for which he received two probationary terms. He committed the present offenses while on bail on a pending drug charge, and while on probation from a prior drug conviction. Defendant continued committing crimes despite receiving two probationary terms for his drug-related convictions and attending outpatient drug treatment. Also, although defendant may not have pointed the firearm at Rosa, his accomplice did so while defendant rifled through Rosa's pockets and stole Rosa's possessions. We agree with the trial judge that there is "an extraordinarily strong need" to deter defendant and others from threatening and robbing innocent victims at gunpoint, and a strong need to deter defendant and others from possessing and using firearms.

We are also satisfied that the record does not support any of the additional mitigating factors defendant sought. Mitigating factor three "relates to the conduct of the victim towards the actor," which is not the case here. State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986). Drug use does not excuse or justify criminal conduct under mitigating factor four. See State v. Ghertler, 114 N.J. 383, 389-90 (1989). Mitigating factor six does not apply because defendant received a custodial state prison sentence, and thus, will not participate in a program of community service. Finally, mitigating factors eight, nine and ten do not apply. As the record clearly establishes, defendant has not responded affirmatively to probationary treatment, and as the trial judge correctly found, defendant presents a significant risk to re-offend.

Affirmed.

1 There was a pre-trial motion pursuant to State v. Scovil, 159 N.J. Super. 194, 199 (Law Div. 1978) to determine whether defendant would testify and exculpate Apuy. The trial judge granted the motion and severed defendant's trial from Apuy's trial.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 As previously noted, Rosa testified that the masks covered the entire head and were wool, whereas Det. Rodriguez testified that the masks did not cover the entire head and he did not know if they were wool.